Trinity College 'did not discriminate' when denying survivor's pension to same sex partner, CJEU rules

David Parris, a former lecturer at Trinity College Dublin, retired on 31 December 2010, before civil partnerships or equal marriage became available in Ireland. Parris, who has dual UK and Irish citizenship, and his partner of 30 years obtained a UK civil partnership on 21 April 2009. However, their partnership did not become recognised in Ireland until 12 January 2011.

According to the rules of the Trinity College pension scheme, entitlement to a survivor's pension on the death of the scheme member is conditional on the scheme member having married or entered into a civil partnership before the age of 60. Parris, who was born on 21 April 1946, argued that this was discriminatory based on either age, sexual orientation or a combination of both, as he was prevented by Irish law from marrying or entering into a civil partnership with his male partner before his 60th birthday.

The Civil Partnership Act came into force in Ireland on 1 January 2011 and did not have retrospective effect. As marital status and associated benefits fall within the competence of the various EU member states, EU law did not require Ireland to provide for marriage of a form of civil partnership for same sex couples before the relevant date.

Pensions expert Alastair Meeks of Pinsent Masons, the law firm behind Out-Law.com, said the case was the latest example of the courts having to "grapple with changing social mores".

"Once again, the CJEU [Court of Justice of the European Union] has chosen not to disrupt the social settlement in a member state," he said. "It resolutely refused to treat a civil partnership as the same of marriage, thus avoiding any suggestion of discrimination on the ground of sexuality when someone who was ineligible for benefits as a civil partner would have been eligible if he had been married to a member of the opposite sex."

"Campaigners will be frustrated that the court has declined to set right retrospectively. Employers will be relieved that they will not see their pension costs increase. Meanwhile, the question remains: to what extent should the courts intervene to give redress when society's attitudes have moved on?" he said.

However, the CJEU ruled that as the condition for receiving a survivor's pension in the scheme rules was worded neutrally, it did not directly discriminate on the grounds of sexual orientation. Neither was it indirectly discriminatory, as EU law could not force Ireland to recognise same-sex marriages or civil partnerships before it chose to do so.

On the age-related point, the CJEU acknowledged that rule "treat[ed] members who marry or enter into a civil partnership after their 60th birthday less favourably than those who marry or enter into a civil partnership before reaching the age of 60." However, member states are explicitly permitted to allow for different ages for admission or entitlement to retirement or invalidity benefits, provided that they do not discriminate on the grounds of sex.

Additionally, the Equal Treatment Directive does not permit any "new category of discrimination resulting from the combination of more than one of" the stated factors "where discrimination on the basis of those grounds taken in isolation has not been established", the court ruled.